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Alabama School of Law's faculty appointments search includes needs in labor and employment law. The announcement:

Assistant Professor / Associate Professor / Professor

The University of Alabama School of Law anticipates making at least two tenured or tenure-track appointments to its faculty, to begin in the 2016-2017 academic year. The Faculty Appointments Committee seeks applications from entry-level candidates with excellent academic records and demonstrated potential for exceptional teaching and scholarly achievement. We also welcome applications from lateral candidates who possess outstanding academic credentials, including demonstrated teaching ability and a record of distinguished scholarship. Although positions are not necessarily limited by subject matter, we are particularly interested in the following academic subject areas: business law, commercial law, employment law, family law, and labor law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarly interests related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered even without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from persons who would add to the diversity of our academic community. Salary, benefits, and research support are nationally competitive. The School of Law will treat all nominations and applications as confidential, subject to requirements of state and federal law. Interested candidates should apply online at facultyjobs.ua.edu. The positions will remain open until filled. Please refer any questions about the hiring process to Professor Julie A. Hill, Chair of the Faculty Appointments Committee for the 2015-2016 academic year (email: facappts@law.ua.edu).

Yesterday, the EEOC ruled that discrimination based on an applicant's or employee's sexual orientation is always a violation of Title VII. The EEOC had been making noises in that direction, but this makes the opinion official.

In its decision, the EEOC went beyond previous caselaw, which recognized that discrimination based on sexual orientation may fit under a sex stereotyping theory. But this theory required the plaintiff to establish that the adverse decision was motivated by the plaintiff's not fitting the employer's stereotype (e.g., an effeminate male). Yesterday's decision went further by holding that sexual orientation discrimination always equates to sex discrimination under Title VII. The EEOC's reasoning is that discrimination based on someone's sexual orientation necessarily discriminates against that person's sex. In other words, an employer that discriminates against a man who is attracted to men, but not to women who are attracted to men is engaged in sex discrimination. The money quote from the decision (you can see this Buzzfeed article for more quotes):

Plaintiffs pushed this argument years ago with almost no success (although, as the EEOC notes, courts have gone along with the same argument for other types of discrimination, such as an employee in an interracial marriage), so it'll be interesting to see if courts are more hospitable to this argument. One practical hurdle is preexisting precedent; however, an agency pronouncement should be entitled to deference, which could help overcome that problem. And there's also the reality that the country as a whole, not to mention the Supreme Court, has obviously become far more sensitive to sexual orientation discrimination over the past several years. But it will be interesting to see how this plays out.

Bill Herbert writes in his role as the Chair of the New York State Bar Association’s Labor and Employment Law Section to let us know about two sets of law student awards. One is a set of writing awards, the other student service awards. Annually, the NYSBA Labor and Employment Section presents awards to law students:

This competition recognizes excellence among law school students writing in the area of labor and employment law; and to cultivate the relationship between the NYSBA Labor and Employment Section and future labor and employment practitioners.

Submission Deadline: December 4, 2015, and the awards will presented at the Section’s Annual Meeting in January 2016.

Articles must be original from the applicant. Submissions should focus on any timely, compelling aspect of labor and employment law. Only one submission per student.

All articles are to be submitted in the following format: a) typewritten - with computer disk attached or submitted by email to bgould@nysba.org no later than December 4, 2015; b) double spaced; c) on 8-1/2 inch by 11 inch paper, 1 inch margins; d) no longer than 20 pages (exclusive of endnotes); e) citations are to conform to "A Uniform System of Citation" (The Bluebook).

Students should include a cover letter with the entry stating their name, mailing address and phone number (both school and permanent), social security number, name of your school and year of graduation. Do not include your name or personal information on your paper.

If published by the Section, all articles submitted for the competition become the property of the Labor and Employment Law Section and the New York State Bar Association. No article submitted may be published in any journal or periodical other than the "New York State Bar Journal", or the "Labor and Employment Law Section Newsletter", until after announcement of the winner of this competition in January 2016.

Samuel M. Kaynard Memorial Student Service Awards

The purpose of the awards is to enable New York State Law Schools to recognize excellence among their law students in the area of labor and employment law and to cultivate the relationship between the Labor and Employment Law Section and future labor and employment practitioners.

Award Criteria: All law school students. Student(s) must be nominated by the dean or the dean’s designee. Direct student applications will not be considered.

The Award is intended to encourage scholarship and exemplary service in the field of Labor and Employment Law. The Award is made by the law school to the student(s) in recognition of an extraordinary accomplishment in the field, including but not limited to the following:

1. Organizing and/or conducting programs at any educational level conducive to the propagation of labor and employment knowledge and skills

2. Outstanding performance in a labor or employment course, clinical experience, project, internship or related activity such as: a collective bargaining simulation grant proposal to research labor and employment issues, curricular revision, or other exposition on the subject;*

(1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

I'm sure I'll get disagreement on this point, but I think issue 1 isn't going anywhere. The Court took a shot at Abood in Harris v. Quinn, but clearly didn't have five votes. Far more likely is issue 2, with the Court probably holding that public-sector unions must use an opt-in system for dues, rather than the current opt-out rule. I've never been sympathetic to the view that the Constitution mandates opt-in over opt-out, but the Court has been dropping some big hints about going in the direction over the last few years.

This article discusses the relevance of the Supreme Court’s Hobby Lobby decision in relation to the National Labor Relations Act (NLRA). Writing as an individual and not on behalf of the NLRB, Mr. Schwartz reviews the broad issue of employment law in religious settings and the development of the NLRA’s religious exemption. He suggests a standard for application of the Board’s religious exemption designed to achieve an appropriate balance of the competing interests between employer's religious rights and employees' regulatory protections.

It's great to see someone address this issue. I've already been introducing Hobby Lobby in my labor law (and other courses), although it's hard to predict exactly how much it's going to impact those areas. But with Hobby Lobby and the NLRB's new Pacific Lutheran standard, the issue of religion and labor law will be quite interesting.

The Supreme Court issued its decision in EEOC v. Abercrombie today. As a reminder, this is the case in which a female job applicant (Samantha Elauf) who wore a head scarf was rejected for a job because it conflicted with company dress policy. The employer argued that there was no religious accommodation claim available unless the applicant or employee specifically noted the need for such accommodation (in other words, there was no religious discrimination because she didn't say the head scarf was for religious reasons and, as a result, the employer didn't need to see if there was a reasonable accommodation). The Court rejected that argument in a decision joined by 7 Justices, with Alito concurring and Thomas concurring in part and dissenting in part. From the syllabus:

To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need. Title VII’s disparate-treatment provision requires Elauf to show that Abercrombie (1) “fail[ed] . . . to hire” her (2) “because of ” (3) “[her] religion” (including a religious practice). 42 U. S. C. §2000e–2(a)(1). And its “because of” standard is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision. §2000e–2(m). Thus, rather than imposing a knowledge standard, §2000e–2(a)(1) prohibits certain motives, regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII’s definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices.

The Court made clear that Title VII was only concerned with whether religion was a motive, no matter what the employer's knowledge was. Although that seems a bit hard to distinguish, especially for juries, as in most cases, a plaintiff would have a hard time showing motive without knowledge (indeed, the Court recognizes in a footnote that it may be hard or impossible to show motive without some knowledge). That said, it does distinguish Title VII's religious accommodation from the ADA, which specifically refers to "known" limitations. For the case at hand, this means that even if Abercrombie did not know she wore the scarf for religious reasons, they will still violate Title VII if she can show that they refused to hire her in order to avoid making an accommodation. For instance, if Abercrombie suspected that this was a religious headscarf, but couldn't confirm it, the plaintiff could show that the desire not to accommodate was a motivating factor for the rejection.

Another important aspect of the decision is that the Court held that Title VII puts religion in a favored position. Rejected Abercrombie's argument that a neutral policy (dress code) couldn't be discriminatory, the Court stressed that employers must reasonably accommodate religious practices. What it didn't say though is that the reasonable accommodation duty is very narrow under previous cases. In other words, Elauf still has work to do to win this one.

This article tells the story of the successful effort to turn around the Labor Department’s performance during the first five years of the Obama Administration. The Labor Department leadership team, largely chosen for its policy expertise rather than any management experience, used common-sense performance measurement and management to improve workers’ lives and the nation’s economy. The article critiques the two principal laws that purport to structure and guide the executive branch’s performance planning and explains how the Labor Department succeeded in improving its performance despite these laws and Congress’ lack of interest in implementing them or holding agencies accountable for compliance or good performance. The article also offers a reform agenda for improving federal government performance both through congressional action and activist stakeholder engagement.

I saw Seth present this paper at a West Virginia University Symposium, and it was really interesting. That's right, it's about managerial performance measures and it was really interesting. Don't believe me? Read the article.

The first of no doubt many updates on the legal wrangling of the NLRB's new election rules. In Baker v. NLRB, a D.C. district court judge has denied plaintiffs' motion for a temporary restraining order stopping enforcement of the new rules, which went into effect on April 14, 2015. Of particular note is the court's finding that the plaintiffs had not shown a likelihood of winning on the merits. This is far from the final word, but a nice first step for the NLRB.

For a description of the major changes in the new rules, and an argument that those changes are quite modest in scope and effect, see my recent article, NLRB Elections: Ambush or Anticlimax?.

Given all the recent attacks on union security agreements (requiring dues), this is one way the NLRB can respond. Expect major outcries if the NLRB decides to allow unions to charge for grievance processing. However, it's not that easy to defend the current precedent. That line of reasoning is that grievance processing is a central part of collective representation, which is certainly a reasonable legal argument given that right-to-work laws are legal. That said, this is one area in which the non-labor expert is likely to feel more sympathetic to the union, which merely has to argue something along the lines of "we shouldn't have to work for free."

News is out today that Sharon Block, former NLRB Member of Noel Canning fame, will be working at the White House. She will be a senior advisor for labor and working families at the White House Office of Public Engagement.

Great to hear that my former colleague at the NLRB has moved such an important position.

As we noted earlier, the UAW's attempt to organize graduate students at Columbia raised the potential for the NLRB reversing Brown University. As of Friday, that potential significantly increased. In two short decisions (I haven't been able to find them yet), the NLRB ordered a regional hearing on the UAW's petition to represent grad students at both Columbia and the New School. This procedural decision establishes a path for the NLRB to ultimately review whether the students are employees under the NLRA. Thus, these cases--in addition to the Northwestern University footballs players--means that we'll likely see a lot of collegiate student action at the Board for a while.

Is a new challenge to the NLRB's Brown University case--finding that grad students are not employees--on the way? Following the settlement at NYU last year, developments at Columbia could ultimately threaten the Brown decision.

We live and work in an era with the moniker of the New Gilded Age to describe the growth in societal income inequality. The designation is not limited to evidence of the growing gap in wealth distribution, but also the sharp rise in employment without security, including contingent and part-time work. This article examines the state of workplace procedural protections against discipline as they relate to employee use of social media in the New Gilded Age. In our times, reactions to the rapid distribution of troublesome electronic communications through social networking tend to eclipse patience for enforceable workplace procedures. The advent of social media and the decline of job security have created a perfect storm that raises the question of whether labor law will look the other way when it comes to the principles of workplace fairness and justice.

The article begins with President William McKinley’s introduction of the doctrine of just cause discipline into American labor law in 1897, during the Gilded Age, at the same time that the common law at-will doctrine was continuing to gestate. McKinley’s unilateral executive action established principles that remain the cornerstone of just cause discipline: proper notice, a fair evidentiary investigation, an opportunity to be heard, and nondiscriminatory treatment. The article then turns to the development of just cause standards in the 20th Century, which added other elements such as notice of workplace policies and the use of progressive discipline. Lastly, the article examines how just cause principles should be applied to allegations of electronic misconduct in the New Gilded Age to ensure reasonable and prudent disciplinary results, employee acceptance of adverse employment decisions, and a decreased likelihood of litigated claims of unlawful discrimination.

I'll confess that I was totally unaware of McKinley's action. Learn about that move and the intersection of just cause and technology in this interesting article.

As readers know, the NLRB's General Counsel is pursuing an action against McDonald's that, along with its opinion in the Roundy's case, would somewhat expand the concept of joint employment under the NLRA. (Note that this article, which is otherwise good, mistakenly states that the NLRB has decided the issue.) It's actually unclear to me how significant the GC's analysis would be in practice, but it's clearly a change in a direction that employers don't like. As a result, the Senate recently held a hearing on the issue (there's a similar on the new representation rules that I'll post on once they happen later in the month).

Our emeritus blogger, Paul Secunda was one of the witnesses and seemed to do quite well). There are obviously arguments about where the line between single and joint employment should be, but I think the GC is reasonably concerned about having their cake and eating it too (or Big Macs). In other words, if corporations want more control over the employment practices of its franchises, it needs to take responsibility as well.

Last week, the Supreme Court decided two labor and employment cases. In one, M&G Polymers, a unanimous Supreme Court held that courts should apply ordinary contract principles when deciding whether health-care benefits survive the expiration of a collective-bargaining agreement. This holding reversed the Sixth Circuit's Yard-Man presumption that CBAs intend these benefits to vest for life. The Court remanded for the CBA to be interpreted by "ordinary contract principles," but ominously noted that "when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life." This stance seemed to be a primary motivation for a four-Justice concurrence (the more liberal Justices). The concurrence stressed that courts should be open to interpreting a CBA to intend vesting of retirees' health benefits, albeit without the Yard-Man"thumb on the scale." The impact of M&G Polymers will depend on how courts apply the decision, so we'll have to wait and see.

In the other decision, Department of Homeland Security v. MacLean, the Court held (7-2, with Justices Sotomayor and Kennedy dissenting) that a TSA regulation did not eliminate whistleblower protection. At issue was a provision in the federal whistleblower statute that makes an exception for disclosures "specifically prohibited by law." In MacLean, the Court held that Congress intended this provision to apply to statutes, but not agency regulations (e.g., elsewhere in the statute, Congress used the phrase "law, rule, or regulation"). The dissenters largely agreed with the majority, but thought the exception was satisfied by the Homeland Security Act's mandate that the TSA prescribe regulations to prevent disclosure of certain information. This case is certainly a win for federal whistleblowers and will require Congress to be more proactive if it wants exceptions for certain whistleblower disclosures.

Increased funding for family care for elderly and disabled family members.

Improving enforcement of equal pay laws

This is an aggressive set of proposals, some of which are obvious nonstarters in the current Congress. It's nice to see the President bringing attention to the issue though; however, I'd like more emphasis in the press on the limits of the FMLA that currently exists. For instance, few people seem to realize that it only applies to employers with 50 or more employees.

The Supreme Court heard oral argument today in Mach Mining v. EEOC, which you might remember from some of our prior posts (also here) and a guest post by Commissioner Feldblum. The transcript has been posted on the Supreme Court's website, and you can read it here. The case was about the EEOC's concilation process and whether that process is judicially reviewable.

I've read through and have some initial impressions. Even though the EEOC is the respondent here, I'm going to start with its arguments because there was significantly more back and forth with the Justices and the EEOC than with the Justices and counsel for the employer, Tom Goldstein. The EEOC has taken an understandable but difficult position, that it cannot file suit unless it has tried and been unable to conciliate on terms it desires. The EEOC asserted that it had a duty to attempt to conciliate, but that essentially, as long as it sent a letter to the employer notifying it that the EEOC had found cause to believe discrimination had occurred in connection with the charge and asking the employer to get in touch, that duty was satisfied. Counsel for the EEOC conceded that this did not seem to be much for judicial review, but argued that even in courts that used a minimal good faith standard, those courts were getting bogged down in mini-trials attempting to assess the quality of the conciliation efforts, something the statute provides no sort of standards for, since the statutory language gives the EEOC has the sole discretion to decide whether any potential terms of resolution are acceptable to it. Counsel for the EEOC was pressed repeatedly to articulate what should be required to ensure that the EEOC actually attempted to conciliate. Chief Justice Roberts, especially was wary of trusting the word of the agency that it had acted in good faith, and Justice Breyer was as well, although to a lesser degree.

With counsel for the employer, the Justices focused primarily on how to frame the issue as a matter of administrative law, since the statute contains no standards for review, nor does it define this conduct as a final agency action. Additionally, the statute requires that the EEOC keep conciliation matters secret and prohibits information about the conciliation process to be used as evidence at trial.

In terms of Supreme Court bingo, predicting how the Justices will vote, I feel fairly confident that Chief Justice Roberts would vote to overturn the Seventh Circuit. I also feel fairly confident that Justices Ginsburg, Sotomayor, and Kagan are more sympathetic to the EEOC's position but might be willing to create some kind of standard more than what the Seventh Circuit required. Justice Kennedy questioned the employer's counsel pretty heavily, and Justice Breyer and Justice Scalia did the same for both sides.

One last observation. Developing a specialty in Supreme Court litigation will make you one smooth advocate. As a former appellate advocate, I have to say that Tom Goldstein (of Goldstein & Russell also founder of SCOTUSblog)'s argument was incredible to read.

Thirteen former United Airlines (UAL) flight attendants say they were improperly fired last year after refusing to work on a Boeing Co. (BA) 747 jumbo jet that had “menacing” images drawn below its tail.

The attendants say they had a right to disobey orders to make the July 14 San Francisco-to-Hong Kong trip after the words “bye bye” were found written in an oil slick on the fuselage, according to a complaint to the U.S. Occupational Health and Safety Administration. Two faces, one smiling and one “devilish,” were drawn nearby, according to the complaint.

At issue is the extent to which the images represented a security risk, as alleged by the attendants. According to the complaint, the workers saw a “serious” threat, while United inspected an auxiliary power unit near the drawings, found nothing suspicious and trivialized the incident as a “joke.”

A couple of big NLRB actions today. In the first, and as expected, the General Counsel issued consolidated complaints against McDonald's, alleging that the company is a joint employer along with its franchisees and therefore liable for numerous unfair labor practices (some of which have already been found to be meritorious). This is likely part of the GC's push in Browning-Ferris to revise the joint-employer doctrine, as well as a more aggressive argument that corporate control over franchises warrants joint-employer status. As far as the practical effect for the Board's recent moves, this case and Browning-Ferris is unparalleled. As much as the religious and faculty issues today are interesting and email captures the public's attention (and mine), far more companies and employees could be impacted by changes to the joint-employer doctrine. So this is one well worth watching.

In the second issue today, the Pacific Lutherandecision, the NLRB is getting a lot of bang for its buck, as it is changing two doctrines. The first is a new Catholic Bishop analysis for determining when religious schools and faculty should be exempt from NLRB jurisdiction. Under the new Pacific Lutheran standard, the NLRB will only decline jurisdiction when a university or college shows that it "holds itself out as providing a religious educational environment" (a requirement adopted from the D.C. Circuit's Great Falls decision) and shows that "it holds out the petitioned-for faculty members as performing a religious function." This latter requirement means that faculty must perform a "specific role" in the creation or maintenance of the school's religious education, as shown by evidence that might include job descriptions, employment agreements, faculty handbooks, and statements by the university. This new standard is likely to decrease the number of schools that can enjoy the religion exemption, although it's not clear to me at this point how big that effect will be.

The second is a revision of the Yeshiva University standard for determining when university faculty are managerial employees exempt from NLRA coverage. The NLRB describes this revision as an attempt to provide more guidance and predictability for parties concerned about the application of Yeshiva. The analysis is focused on Yeshiva's requirement that managerial faculty have broad and substantial decision-making authority, which the Board attempts to capture with five categories of university decision-making. Three of the categories are deemed more important to the university as a whole ("primary"): academic programs, finances, and enrollment management. The other two categories are less important to the university as a whole ("secondary"): academic policy and personnel policy and decisions. When determining whether faculty have control over these decisions, the Board will look to the actual exercise of control or ability to effectively recommend decisions. The result seems like to expand the number of faculty who will be covered by the NLRA, but the extent to which that's true will have to wait for its application in more cases.

A busy and important day for the NLRB. But, I don't expect it to be the last such day this year.